F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T H O M A S W .S. R I C H E Y ,

Plaintiff-Appellant
,

v

.

D. D A H N E , Defendant-Appellee

. N o. 12-36045

D.C. No. 3:12-cv-05060- B HS

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton B e njamin H. Settle, District J udg e, Presiding

Arg ued and Submitted October 16, 2015—Seattle, W ashing ton

F iled December 8, 2015

B efore: W illiam A. F letcher and Ronald M. Gould, Circuit J udg es, and David A. Ez ra, * District J udg e.

O pinion by

J udg e Gould

* T h e Ho n o rab l e D a v i d A

. Ezra, District J u d g e f o r th e U.S. District Co u rt f o r th e District o f

Haw aii, sittin g b y

d esig n atio n

.R I C H E Y V

. D A H N E 2

SUMMARY * *

P risoner Civil Rights

The p anel denied a motion filed by the appellee wh ich
soug h t to r e v o ke appellant’s in forma pauperis status on appeal under t h e “three strikes” provision of the Prison L itig ation Reform Act, 28 U.S.C. § 1 9 1 5(g ), and the panel also r e v ersed, in an unpublished memorandum disposition filed jointly

with its opinion, the district court’s dismissal o f appellant’s lawsuit for failure to state a claim, and remanded.

The p a n e l r e j e c t ed appellee’s contention that appellant did
not qualify for in forma pauperis status because he h ad received four strikes before f iling h is appeal. Addressing the firs t s t rike, the p anel held that a mag istrate judg e ’s March 2012 d ismissal of a

p pellant’s a ction did not qualify a s a strike for frivolousness b ecause neither a n appeals pan e l nor subsequent judg es followed the mag istrate judg e’s reasoning
, indicating that reasonable judg es differed on the merits. The panel further d etermined that the mag istrate judg e’s March 2012 d ismissal could n o t be c o nsidered a strike for failure to state a c laim because the mag istrate considered evidence submitted by the defendant when making her d ecision

. The panel therefore construed the March 2 012 dismissal as a g rant of summary

judg ment to the defendant.

The panel ag

reed that appellant had acquired two strikes in another case. Addre s s ing an issue left open by the S u preme Court’s recent decision in Coleman v. Tollefso n , 1 3 5

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R I C H E Y V

. D A H N E 3

S. Ct. 1759 (2015), the panel held that a p risoner is e ntitled to in forma pauperis sta t u s o n appeal from the trial court’s dismissal of a third-strike lawsuit. The p anel c oncluded that the district court’s dismissal of the complaint in this c ase did
not c onstitute a “prior o ccasi o n ” under the Prison L itig ation Reform Act, and that therefore a p pellant had not accumulated a third strike before he filed this appeal.

COUNSEL

Edward A. Pipe r, Stoel Rives L L P, Portland, Oreg on, for Plaintiff-Appellant.

Haley B each (arg

u ed), Assistant Attorney G eneral, C o r r e c t ions Division; Robert W

. F e rg u son, Attorney General
, W a shing ton State Office of the Attorney Gen e ra l
, Oly mpia, W a shing ton, for Defendant-Appellee.

OP INION

GOUL D, Circuit J udg e :

Thomas W .S. Richey appeals from the dist r i c t court’s dismissal of his civil rig hts action for failure to state a claim under F ederal Rule of Civil Procedure 1 2(b)(6)

. A motions panel g ranted Richey ’s motion for in forma pauperis (I F P)
status on appeal. D ahne later f iled a motion to r evoke Richey ’s I F P status under the “three strikes” provision of the Prison L itig ation Reform Act (PL RA), 28 U.S.C. § 1915(g ). Dahne’s m o t ion raises the question whether a prisoner may maintain I F P status when appealing the dismissal o f his thirdstrike lawsuit, an issue left open by the Supreme Court’sR I C H E Y V

. D A H N E 4

recent decision in Coleman v. Tollefson
, 135 S. Ct. 1759, 1764–65 (2015). B ecause we conclude that the PL RA does not bar a prisoner from receiving I F P status on appeal of his third-strike dismissal, we deny Dahne’s motion. 1

I

As an inmate at the Staf

ford Creek Corrections Center, Richey filed a g rievance on November 11, 2011, alleg ing that

a g uard denied him his “rig h t to y ard, a shower, a n d c l ean underwear.” 2 Richey alleg ed that he did not know the g uard’s

name and that he described her “accurately ” as an “ex tremely obese Hispanic female g uard.” The g rievance was r eturned
to Richey with a note to “Re w r i t e - a ppropriately

. J ust stick
to the issue of what h ap p e ned, when, who was involved.” Richey submitted a revised g rievance on November 17, 2011, containing similar alleg ations and similar references to the
g uard’s weig ht, with the words “who,” “when,” and “what happened” inserted into the narrative. The g rievance was ag ain returned to him w ith an o rder to “ Rewrite as d irected. Hispanic F e male is a diquit [ sic]

. E x tre m e l y O bese is unnecessary and inappropriate.”

1 In a m em o ran d u m d isp o siti o n f iled j o in tly w ith th is o p in io n , w e also

rev erse th e d i strict co u rt’ s d ism issal of Rich ey ’ s law su it f o r f ailu re to state a claim an d w e rem an d f

o r f u rth er p ro ceed in g s.

2 On ap p eal f

ro m d ism issal f

o r f ailu re to state a claim
, w e “a c cep t all f actu al alleg atio n s in th e co m plain t as tru e an d co n stru e th e p lead i n g s in th e lig h t m o st f

av o rab le t o th e n o n m o v in g p arty .” Ta ylo r v. Yee
, 7 8 0 F.3 d 9 2 8 , 9 3 5 (9 th

Cir. 2 0 1 5 ) (citatio n

o m itted ).R I C H E Y V

. D A H N E 5

Rather than rewrite the g rievance, Richey wrote a kite 3 to the g rievance coordinator on November 28, 2011, asking for clarification of the w ord “adiquit”and ex plaining that his description of the g uard’s weig ht was “necessary a nd appropriate in helping

him identify

her,” as he did not know her name. He asked the coordinator “not to punish [him] b y rejecting [ his] g rievance because [ the c oordinator] disag reed with [ his] choice of lang uag e.” W hen Richey did not receive

a response, he wrote another ki t e o n December 7 asking “ARE YOU GOI

NG TO PROCESS MY PRO P ER L Y S UBM I TTED GRI EVANCE OR W HAT? I ’M NO T REW RI TI

N G I T SO DO YOUR J OB AND PROCESS I T.” Dahne responded in writing
, “No, due to y our decision not to rewrite as requested y our g r ievance has been administraitevly [ sic] withdrawn.”

Seeking d amag es, Richey sued Dahne pro se for violating his F irst Amendment r ig ht “ to redress g r i e vances and to be free of retaliation” and “for violating [ h i s ] freedom o f speech.” The district court dismissed R ichey ’s complaint under F ederal Rule of Civil Procedure 12(b)(6) for failure to state a claim, ruling that Richey “provide[ d] no authority for the proposition that insulting a pr i s o n g uard is protected conduct” and “failed t o a l l ege that his rig ht to redress his
g rievances ha[ d] been chilled by t h e o f ficial’s refusal to accept h is offensive g rievance.” The distric t c ourt also revoked Richey ’s I F P status at that time.

Richey filed a timely notice o f appeal and moved for I F P
status on appeal. A motions panel g ranted the motion, stating that its “review of the rec o rd indicates that a ppellant is

3 In p riso n t e r m in o lo g y , a k ite is a f o rm u sed b y p riso n in m ates to

co m m u n icate w i th

staf f

.R I C H E Y V

. D A H N E 6

entitled to proceed in forma p a u peris” under 2 8 U .S.C. § 1915(a). After Richey w as appointed pro bono counsel a nd briefing was completed, Dahne moved to revo k e Richey ’s I F P status under the “three strikes” provision of the PL RA. See 28 U.S.C. § 1915(g )

.

II

A litig ant g enerally qualifies for I F P status if he“is unable
to pay [ fi l i n g] fees o r g ive security therefor.” 2 8 U .S.C. 1915(a)(1). Cong ress passed t h e P r ison L itig ation Reform Act in 1996 to “reduce the quantity and improve the quality of prisoner suits,” instituting several refor m s t o prevent prisoners from f

iling meritless claims in the federal cou rt sy stem. Jones v. Bock
, 549 U.S. 199, 203–04 (2007) (quoting Porter v. Nussle
, 534 U.S. 516, 524 (2002)). One r eform was the int r o duction of a “three strikes” rule that bars prisoner litig ants from receiving I F P status in a c ivil action or appeal

if the pr i s o ner has, on 3 o r more p r ior occasions, while incarcerated or detained in
any facility
, broug ht an a c tion or appeal in a court of the United States that was dismissed

on the g rounds that it is f rivolous, malicious,

or fails to state a claim upon w hich relief may be g ranted, unless the prisoner is under imminent dang er of serious phy sical injury

. 28 U.S.C. § 1915(g ).

Dahne arg

ues that Richey

does not qualify

for I F P status because Richey received four strikes before filing this appeal

on December 17, 2012: dismissal of the complaint in R ichey

v. Thaut
, No. C11-5680 (W .D. Wash. Mar. 2 6, 2012) ( ThautR I C H E Y V

. D A H N E 7

I ) ; dismissal of another civil complaint, Richey v. Thaut
, No. C11-5755 (W .D. W ash. May 16, 2012) ( Thaut II ); d ismissal of the a ppeal in that case, Richey v. Thaut
, No. 12-35632 (9th Cir. Nov. 1 5, 2012) ( Th a u t III ); and the district court’s dismissal of the complaint in this case. “[ O] n ce a prisoner has b een p laced on not i ce of the potential disqualification under § 1915(g ) by

either the district c ourt or the defendant, the prisoner bears the ultimate burden of persuading the court that § 1915(g ) does not prec l u de I F P status.” Andrews v

. King
, 398 F .3d 1113, 1120 (9th Cir. 2005).

W e review de novo the “interpretation and application” o f the PL RA’s t h r e e strikes p rovision. Id. at 1118. This includes de novo review of whether a district court correctly issued a strike under the PL RA in a prior case. See i d

. at 1120–21 (declining to accept district c ourt’s characteriz ation of a pr i o r dismissal as a strike); Belanus v. Clark
, 7 96 F .3d 1021, 1 032 & n.3 (9th Cir. 2015) (F ernandez
, J
., concurring in part and dissenting in part). Reviewing the d ismissals that Dahne claims constitute “strikes” ag ainst Richey
, we conclude that Richey has not received “ three strikes” and is thus entitled to I F P status.

A. Richey v. Thaut , No. C11-5680 (W.D. Wash. Mar. 26, 2012) ( Thaut I

)

Thaut I w as a civil c omplaint c ontaining alleg a t i ons si m i l a r to this case: Richey submitted a g rievance for being denied his rig ht to shower by an “ex tremely obese f emale Hispanic g uard,” but when Thaut asked Richey to rewrite the
g rievance without “objectionable lang uag e,” Ric hey sued instead. The mag istrate judg e determined that Richey did not

ex h aust his admin i s t

r a t i v e remedies because he “simply failed
to follow the p rescribed p r o c edure a n d failed to amend hisR I C H E Y V

. D A H N E 8

g rievance when he w as asked to do so,” recom m e n ding dismissal wi t h o ut prejudice and “that the dismissal count a s

a strike.” The mag istrate judg e reasoned that Richey ’s failure
to e x haust rendered his claim “frivolous” because Richey was “very familiar with the pri s o n g rievance sy stem and the requirements for pleading a civil rig hts action.” The district

c o u r t s u m m a r i l y a d o p t e d t h e m a g i s t r a t e j u d g e ’ s recommendation.

On appeal, we a ffirmed the d ismissal of Thaut I
, see Richey v. Thaut
, 509 F

. App’x 6 59 (9th Cir. 201 3 )
, but the
p a n el did not follow the mag istrate judg e’s reasonin g. I nstead, we relied on an alterna te arg ument, holding that “[ t] he district c ourt did not clearly err in finding that Richey

was required to appeal the non-g rievability determination to the g rievance prog ram manag e r a n d f a i led to do so.” 4 Id. at 660. That we declined to follow t h e mag istrate judg e’s reasoning raises a question about its correctness; notably
, we did not assess a strike on appeal.

A d d i t i o n a l l y , w h e n t h e m a g i s t r a t e j u d g e he r e—incidentally the same mag istrate judg e as in Thaut I

— was presented with a similar f act pattern, she did not rely

on the same reasoning as she d id i n T h a u t I

. I n stead, she recommended dismissal on ex haustion g rounds for reasons similar to our decision affirming Thaut I on a ppeal: that Richey “did nothing to advance his complaint that Defendant

4 T h au t’ s b rief o n ap p eal p rim arily ech oed th e m ag istrate j u d g e’ s

co n clu sio n th at Rich ey n eed ed to f i le an am en d ed g riev an ce b ef ore su in g , b u t ou r co n clu s i o n w a s b ased o n an altern ativ e arg u m en t th at T h au t

m en tio n ed o n ly in p assin g : th at Rich e y “ h ad th e o p p o rtu n ity to req u est

rev iew o f h is seco n d g riev an ce th at w as f o u n d n o t g riev ab le to th e Griev an ce Pro g ram Man ag er,” b ut “ ch o se n ot to av ail h i m self of th is
p ro ced u re.” Bu t see n o te 5
, in fra

.R I C H E Y V

. D A H N E 9

Dahne h a d r e fused to ‘process his g rievance for no g ood reason.’” She also characteriz ed this suit as “frivolous” a nd recommended it count as a strike. The distr i c t court did not ad o pt her recommendation, however—the d istrict judg e

ex p ressed hesitation about the correctness of the mag istr a te judg e’s ruling 5 and requested additional briefing o n t he

ex h austion issue. Dahne then withdrew his motion to dismiss for failure to ex haust administrative remedies.

B ecause subsequent judg e s—including the mag istrate judg e herself in a later case—did not follow the reasoning b y which the mag istrate judg e dismissed Thaut I f o r nonex h austion, we conclude that rea sonable judg es may differ about the merits of her conclusion. The dismissal in Thaut I

was not a strike for f

r i v o l o usness. S

ee Neitzke v. W

illiams
, 490 U.S. 319, 325 (1989) (defining frivolo u sness under the I F P statute as having no leg al is sues “arg uable o n their merits”) (quoting Anders v

. Californi a , 3 8 6 U.S. 738, 744 (1967)).

Nor can the dismissal in Thaut I be considered a strike for “fail[ ure] to state a claim upon which r elief may be g ranted,” 28 U.S.C. § 1915(g ), i.e., dismissa l u n d er F ed. R. Civ. P. 12(b)(6). See Andrews
, 398 F .3d at 1 121 (equating § 1915(g ) with Rule 12(b)(6)). The mag istrate judg e in Thaut I treated the motion to dismiss f

or failure to ex haust administrative remedies as “an u nen u m e rated 12(b) motion,” following

5 W h ile o u r decisio n Rich ey v. Th a ut , 5 0 9 F. A pp ’ x 6 5 9 (9 th Cir. 2 0 1 3 ),

co n clu d ed th at “ [t]h e d i s t r i ct co u rt d id n ot clearly err i n f i n d in g th at Rich ey w as req u ired to ap p eal th e n o n

- g r i e v ab ility d eterm i n atio n to th e g riev an ce p ro g ram m an ag er an d f ailed to d o so ,” id

. at 6 6 0
, th e reco rd in th is case sh o w ed th at u n d er th e p riso n ’ s p o licies, a “ req u est f o r rew ritin g

. . . can n o t

b e ap p ealed to th e Griev an ce P ro g ram Man ag er.”R I C H E Y V

. D A H N E 10

W yatt v. Terhune , 315 F .3d 1108, 1119 (9th Cir. 2003). W e l ater overruled W

yatt en banc, clarify

ing that “failure t o

ex h aust is more a

pprop r iately handled under the framework of the ex isting rules,” s u ch as Rule 12(b)(6) and Rule 56

sum m ary judg ment. Albino v. Baca
, 747 F .3d 1162, 1166 (9th Cir. 2014) (en banc)
, ce r t

. denied sub nom. Scott v

. A l b i n o , 135 S. Ct. 403 ( 2014). I f the district cour t “consider[ s] evidence submitted by the p arties in r eaching its decision, we construe the d is t r i c t court’s order as a g rant o f
summary judg ment on the issue of ex h austion.” W illiams v. Paramo
, 775 F

. 3d 1182, 1 1 91 (9th Ci r

. 2 0 15); see also Albino , 747 F .3d at 1166.

I n Thaut I
, failure to ex haust was not “clear o n the face o f the complaint,” Albino
, 7 47 F .3d at 1166, and the mag istrate judg e considered a declaration about the prison g rievance
sy stem submitted by defendant Thaut when making her d e c ision. Thaut I was therefore not dismissed for failure to state a claim, but was rather a g rant of summary judg ment to the defendant. Consequently
, it was no t a strike under the PL RA.

B. Richey v. Th a u t , No. C11-5755 (W.D. Wash. May 16, 2012) ( Thaut II

)

I n Thaut II

, Richey filed a g rievance after he was charg ed for envelopes that he never received. Thaut r ejected the
g rievance because Richey “ did not provide an invoice number for the order of e nvelopes.” W hen Richey resubmitted the
g rievance with the ex planation that he did n o t have the number because he did not have a receipt, Thaut classified his
g rievance as “ withdrawn.” B ut R i chey then submitted a separate g rievance o n the same matter that was accepted a nd resulted in Richey

being refunded, so the district court ruledR I C H E Y V

. D A H N E 11

that Richey failed to state a plausible c l a i m that T h aut violated his rig ht to file g rievances. This ruling was correct, and it was Richey ’s first strike under the PL RA.

C. R i c h ey v. Thaut , N o. 1 2-35632 (9th Cir. N ov. 1 5 , 2012) ( Thaut III

)

Richey t h e n appealed the dismissal of Thaut II to us. A motions panel determined that the appeal was friv o l o us a nd d e c l i ned to g r ant Richey I F P status. The p anel did n o t dismiss the appeal, however—it instead stated that Richey could still “pursue this appeal despite the court’s finding that it is frivol o u s ” if he paid the filing fee, noting that

“ [ o] therwise, the appeal will be dismissed by the Clerk f o r failure to prosecute, r eg a

rdless of further filing s.” R i c h e y ’s appeal was then dismissed four w eeks later “for failure to pay the docketing /filing fees in this case.”

I n O ’ N e a l v. Price
, 5 31 F .3d 1146 (9th Cir. 2008), we held that “when a district court disposes o f a n i n forma pauperi s complaint ‘on the g r ounds that [ the claim] is frivolous, malicious, o r fails to st a t e a claim upon which relief may be g ranted,’ such a c omplaint is ‘dismissed’ for
purposes of § 1915(g ) e v en if the district court sty les such dismissal as d e nial o f the prisoner’s application to file the action without prepay

ment of the full filing fee.” Id. a t 1153 (alteration in o rig inal). O’Neal ’s reasoning applies equally to the situation in Thaut III

, a s w e rejected Richey ’s request for I F P status because the appeal was frivolous even thoug h we did not dismiss the appeal u ntil later w hen Richey d id not pay the filing fee. The dismissal o f t h e a ppeal in Thaut III was Richey ’s second strike.R I C H E Y V

. D A H N E 12

D. The dism issal of t he com plaint in this case

Dahne arg ues that Richey received an additi o n al strike when the district court dismissed the lawsuit at issue here for f a i lure to state a claim. Dahne c ites the Supreme Co u r t ’s

r e c e n t decision in Coleman v. Tollefson
, 135 S. Ct. 1759 (20 1 5 )

. I n Coleman
, a prisoner h ad already received two strikes w hen a t h i r d complaint was dismissed for f a ilure to state a claim, and he a

ppealed that d i s m i s s al. Id. at 1762. W h ile that appeal was pending
, the p risoner f ile d m u l tiple other lawsuits and moved to receive I F P status w h i l e doing

so. Id. The Supreme Court concluded that the prisoner was
not entitled to I F P status in those s uccessive suits, holding that “[ a ] pr ior dismissal o n a statutorily enumerated g r ound
counts as a strike ev en if the dismissal is the subject of an appeal.” Id. a t 1763. The Court, however, left open the question presented h ere: whether a prisoner is entitled to I F P
status on “ appeal f

rom the trial c ourt’s dismissal o f [ a] third complaint instead o f [in] an attempt to file several additional complaints. Id. at 1764–65. 6 W e conclude that a prisoner is

e n t itled to I F P status while appealing h is third-str i k e dismissal.

The Supreme Court in Coleman based its holding on “the plain lang uag e of

” § 1 915(g ), stating that “[ l] ing uistically

6 P rio r to C

o lema n , th e l aw in th is circu i t w as th at “ a d i strict co u rt’ s d ism issal o f a case d o es n o t co u n t as a ‘ strik e’ u n d er § 1 9 1 5 (g ) u n til th e litig an t h as ex h au sted o r w aiv ed h is o p p o rtu n ity t o ap peal,” i .e., “ ‘ th e d ate

o f th e Su p rem e Co u rt’ s d en ial o r d ism issal o f a p e t i t i o n f or w rit of certio rari, if th e p riso n er f iled o n e, o r f

ro m th e d ate w

h en t h e tim e t o f

i le

a p etitio n f

o r w rit o f certio rari ex p ired
, i f h e d id n o t.’ ” S ilva v. Di Vitto rio
, 6 5 8 F.3 d 1 0 9 0
, 1 1 0 0 (9 th Cir. 2 0 1 1 ) (q u o t in g Ha fed v. Fed

. Bu r ea u o

f Priso n s , 63 5 F.3 d 1 1 7 2
, 11 7 6 (1 0 th Cir. 20 1 1 )). S ilva ’ s h o ld in g d o es n o t

su rv i v e C o lema n

.R I C H E Y V

. D A H N E 13

speaking
, we see nothing about the p h r a s e ‘prior o ccasions’ that would t r a n sform a dismissal into a dismissal-plusappellate-review.” Id. at 1763. The United States arg ued a s amicus curiae in Coleman
, however, that “[ t] he phrase ‘prior

o ccasions’ is most sensibly read as referring to stri k e s imposed in p rior-filed suits, n ot to those imposed in an earlier stag e o f the same suit.” B rief for the U nited States as Amicus Curiae Supporting Respondents, Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (No. 13-1333), 2015 W L 2 72362, at *25.; see also Coleman
, 135 S. Ct. at 1 7 6 5 (noting the Solicitor General’s arg ument that “a trial court d ismissal qualifies as a strike o nly if it occurred in a pri o r , d i f f e rent , lawsuit” (emphasis in orig inal)).

W e ag ree with the Soli ci t o r General’s interpretation o f § 1915. The Supreme Court’s holding in Coleman was based i n p a rt on “the w ay in which the law ordinarily treats tr i al court judg ments.” 135 S. Ct. a t 1764. W hile judg ments are immediately preclusive as to successive suits, see id.
, they a re certainly not preclusive to the panel on appeal. Deny ing I F P review of a d istrict court’s third strik e d i smissal would
pr e v e nt us from performing our “appellate function” a nd would “freez e out meritori o u s claims or ossify district court errors.” Henslee v. Keller
, 681 F .3d 538, 543 (4th Cir. 2 012) (citations omitted). F u rthermore, t h e Supreme Court’s
statement in C oleman that a prisoner could refile his fourth lawsuit I F P if h is third strike were reversed on appeal, 135 S. Ct. at 1764, would be of no consolation if a prisoner could not appeal the er r o neously -issued third strike I F P. And the Court’s concern in Coleman that a dismissal-plus-appellaterev i e w r u le would “produce a leaky filter” allowing a prisoner to file many frivolous lawsuits while his third strike dismissal was pending on appeal, id. , is not implicated here,R I C H E Y V

. D A H N E 14

a s t he prisoner retains I F P status only f or the appeal of h i s third strike.

The f acts of this case ex emplify w hy § 1915(g ) should be construed as allowing a

ppellat e r e view of a third strike. A s

ex p lained in the jointly -filed memorandum dispositio n , the district court erred in dismissing Richey ’s complai n t

. I f Richey was not entitled to I F P status on appeal, he would have to pay the filing fee for us to reverse the district court’s

erroneous third strike, which w ould ironically make h i m elig ible ag ain for I F P status in successive suits

. W e d o not think that Cong ress intended such a peculiar sy stem.

W e hold t hat dismissal of the complaint in the action underly ing this appeal does not c onstitute a “prior occasion” under the PL RA, and Richey h ad not accumulated a third strike before he filed this appeal. Dahne’s motion to revoke Richey ’s I F P status on appeal is denied

.